Earlier today, I wrote a quick summary of this morning’s Supreme Court of Canada majority decision that says judges may require witnesses to remove their niqab to testify in court. The majority laid out some specific issues that should be considered when making such a decision, including the broader social context of requiring victims of abuse to violate their religious beliefs in order to see justice, and the “chilling effect” that such a practice may have. In this post, I want to briefly touch on the two dissenting positions, and provide some of my own thoughts and concerns.
The LeBel dissent
Summary: the niqab should be removed in all circumstances
This one is pretty clear-cut: no niqabs in court. Justices LeBel and Rothstein throw their full weight behind the principle that an accused person has the right to a fair trial, and that allowing someone to cover her face for religious reasons is a contravention of the principles of fundamental justice. They point to the courtroom as, for all the potential drawbacks of such a system, an adversarial environment where the accuser is already foregoing some basic comforts in the pursuit of justice. While removing the veil may be uncomfortable, this discomfort does not trump the right of an accused person to avail hirself of the same court system that applies to all Canadians.
People who are particularly uncomfortable with the idea of Sharia courts should find some ideological home in this position.
The Abella dissent
Summary: the niqab should be allowed in all circumstances
The reason why this was a 4-2-1 decision rather than a 4-3 decision is because Justice Abella dissents from the majority saying that it does not go far enough in protecting the accuser’s rights, whereas the LeBel dissent says it goes too far.
Justice Abella notes that there are a number of other circumstances where the ability of a prosecutor to elicit a real-time facial response from a witness is compromised. For example, some people require an interpreter to respond in English – jurors are required to take their non-verbal cues from the interpreter rather than the witness. And yet we do not consider these cases to be violations of the principles of fundamental justice. The requirement to remove a veil is therefore not well-justified by the central argument of the Crown, and certainly does not outweigh the burden placed upon a testifying witness by forcing hir to violate her religious beliefs.
People who are hot under the collar about “victim’s rights” should side with Justice Abella.
As I said in the first of these posts, it is fairly clear that while the Court may have ideological divides, these are more about how the law is interpreted than they are symptoms of a liberal/conservative split. Neither the majority or either of the dissenting opinions line up directly with a “progressive” or “conservative” cluster of beliefs. The fact is that a split court means that justice will be applied in a split way at the aggregate level, with some lower court judges deciding to compel the witness to de-veil, and others allowing the veil, based on the merits of the case and the temperament of the presiding judge. My own inability to decide on what the court should do is mirrored in the court’s own similar inability.
Interestingly, the Court agrees with the Crown argument that facial expression is needed for a fair trial not based on scientific evidence (very little was offered during the course of the trial), but based on legislative and court precedent. This is admirable from a legal perspective – courts are supposed to interpret the law based on precedent set in other cases – but less admirable from a social justice perspective. The “precedent” the court and laws set has been based on a history of European (specifically British) colonialism, which would obviously not make allowances for the niqab or any non-European/Christian religious expression. If anything, relying on precedent in this way simply carries forward an imperialist definition of ‘fairness’ and ‘credibility’ into an age where the population looks very different.
I must confess that I am more alarmed by what the court doesn’t say than I am by what it does. I saw no mention of the fact that the vast minority of sexual assault cases ever see the court, and within marginalized groups that number is likely to be even lower. It seems to me that the court should be doing what it can to lower barriers to justice, especially in the absence of rigorous evidence that covering one’s face necessarily damages the ability to ascertain credibility. Maybe the SCC simply does not feel that it is the court’s job to do that (that it is rather a legislative or law enforcement issue), but they don’t even talk about it. I find that troubling.
There is some comfort to be taken for secular activists in this ruling – namely, that the SCC has (once again) affirmed that a sincerely-held religious belief is not an immediate trump card over other rights. There has been much consternation that Stephen Harper would pack the SCC with ideologues and institute the theocracy we know he secretly wants. As much as I despite Mr. Harper and his pro-stupid agenda, I have found precious little evidence that instituting a god-centred government is among his priorities. I also fail to find Republican North Party talking points in any part of this decision, and nothing that suggests to me that a particular political agenda, rather than a legal one, was behind the reasoning.
This ruling should also please those folks who are particularly concerned about “judicial activism” by an “unelected” Supreme Court. This is the opposite of that – a court that basically offers no position on this issue and suggests that individual judges should be empowered to make decisions on a case-by-case basis. Anyone like me who was hoping that the court would be more ideological will be disappointed, but it reflects the reality that the law is an imprecise instrument, and is basically nothing more than an agreement that we will, as a society, try to do our best to make life fair.
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